Draft articles on Diplomatic protection 2006

character.66 Although considerations of equity might seem to endorse such a position, it has on occasion been repudiated.67 The inconclusiveness of the authorities make it unwise to propose a rule on this subject.

Article 6

Multiple nationality and claim against a third State

1.Any State of which a dual or multiple national is a national may exercise diplomatic protection in respect of that national against a State of which that person is not a national.

2.Two or more States of nationality may jointly exercise diplomatic protection in respect of a dual or multiple national.

Commentary

(1) Dual or multiple nationality is a fact of international life. An individual may acquire more than one nationality as a result of the parallel operation of the principles of jus soli and jus sanguinis or of the conferment of nationality by naturalization or any other manner as envisaged in draft article 4, which does not result in the renunciation of a prior nationality. Although the laws of some States do not permit their nationals to be nationals of other States, international law does not prohibit dual or multiple nationality: indeed such nationality was given approval by article 3 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, which provides:

“… a person having two or mo re nationalities may be regarded as its national by each of the States whose nationality he possesses.”

It is therefore necessary to address the question of the exercise of diplomatic protection

by a State of nationality in respect of a dual or multiple national. Draft article 6 is limited to the exercise of diplomatic protection by one or all of the States of which the injured person is a

66E.M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims (New York: The Banks Low Publishing Co., 1915), p. 628; Straub claim.

67Eschauzier claim (Great Britain v. Mexico), at p. 209.

41

national against a State of which that person is not a national. The exercise of diplomatic protection by one State of nationality against another State of nationality is covered in draft article 7.

(2)Paragraph 1 allows a State of nationality to exercise diplomatic protection in respect of its national even where that person is a national of one or more other States. Like draft article 4, it does not require a genuine or effective link between the national and the State exercising diplomatic protection.

(3)Although there is support for the requirement of a genuine or effective link between the State of nationality and a dual or multiple national in the case of the exercise of diplomatic protection against a State of which the injured person is not a national, in both arbitral decisions68 and codification endeavours,69 the weight of authority does not require such a condition. In the Salem case an arbitral tribunal held that Egypt could not raise the fact that the injured individual had effective Persian nationality against a claim from the United States, another State of nationality. It stated that:

“the rule of International Law [is] that in a case of dual nationality a third Power is not entitled to contest the claim of one of the two powers whose national is interested in the case by referring to the nationality of the other power.” 70

This rule has been followed in other cases71 and has more recently been upheld by the Iran-United States Claim Tribunal.72 The decision not to require a genuine or effective link in

68See the decision of the Yugoslav-Hungarian Mixed Arbitral Tribunal in the de Born case, Annual Digest of Public International Law Cases, vol. 3, 1925-1926, case No. 205 of 12 July 1926.

69See article 5 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws; resolution on “ Le Caractère national d’une réclamation internationale présentée par un Etat en raison d’un dommage subi par un individu” adopted by the Institute of International Law at its Warsaw Session in 1965: Résolutions de l’Institut de Droit International, 1957-1991 (1992), p. 56 (art. 4 (b)); 1960 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens, article 23 (3), in L.B. Sohn and R.R. Baxter, “Responsibility of States for Injuries to the Economic Interests of Aliens”, AJIL, vol. 55 (1961), p. 548;

Garcia Amador, Third Report on State Responsibility, in Yearbook … 1958, vol. II, p. 61, document A/CN.4/111 (art. 21 (3)).

70Award of 8 June 1932, UNRIAA vol. II, p. 1165 at p. 1188.

71See the decisions of the Italian-United States Conciliation Commission in the Mergé claim of 10 June 1955, ILR vol. 22 (1955), p. 443 at p. 456; the Vereano claim, decision No. 172 of 17 May 1957, ILR vol. 24 (1957), pp. 464-465; and the Stankovic claim of 26 July 1963, ILR vol. 40 (1963), p. 153 at p. 155.

72See Dallal v. Iran, Iran-U.S. C.T.R., vol. 3 (1983), p. 23.

42

such circumstances accords with reason. Unlike the situation in which one State of nationality claims from another State of nationality in respect of a dual national, there is no conflict

over nationality where one State of nationality seeks to protect a dual national against a third State.

(4) In principle, there is no reason why two States of nationality may not jointly exercise a right that attaches to each State of nationality. Paragraph 2 therefore recognizes that two or more States of nationality may jointly exercise diplomatic protection in respect of a dual or multiple national against a State of which that person is not a national. While the responsible State cannot object to such a claim made by two or more States acting simultaneously and in concert, it may raise objections where the claimant States bring separate claims either before the same forum or different forums or where one State of nationality brings a claim after another State of nationality has already received satisfaction in respect to that claim. Problems may also arise where one State of nationality waives the right to diplomatic protection while another State of nationality continues with its claim. It is difficult to codify rules governing varied situations of this kind. They should be dealt with in accordance with the general principles of law recognized by international and national tribunals governing the satisfaction of joint claims.

Article 7

Multiple nationality and claim against a State of nationality

A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.

Commentary

(1) Draft article 7 deals with the exercise of diplomatic protection by one State of nationality against another State of nationality. Whereas draft article 6, dealing with a claim in respect of a dual or multiple national against a State of which the injured person is not a national, does not require an effective link between claimant State and national, draft article 7 requires the claimant State to show that its nationality is predominant, both at the time of the injury and at the date of the official presentation of the claim.

43

(2) In the past there was strong support for the rule of non-responsibility according to which one State of nationality might not bring a claim in respect of a dual national against another State of nationality. The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws declares in article 4 that:

“A State may not afford diplomatic protecti on to one of its nationals against a State whose nationality such person also possesses.” 73

Later codification proposals adopted a similar approach74 and there was also support for this position in arbitral awards.75 In 1949 in its advisory opinion in the case concerning Reparation for Injuries, the International Court of Justice described the practice of States not to protect their nationals against another State of nationality as “the ordinary practice”. 76

(3) Even before 1930 there was, however, support in arbitral decisions for another position, namely that the State of dominant or effective nationality might bring proceedings in respect of a national against another State of nationality.77 This jurisprudence was relied on by the

73See, too, art. 16 (a) of the 1929 Harvard Draft Convention of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, AJIL, vol. 23, Special Supplement (1929), pp. 133-139.

74See art. 23 (5) of the 1960 Harvard Draft Convention reproduced in AJIL, vol. 55 on the International Responsibility of States for Injuries to Aliens, reproduced in AJIL, vol. 55 (1961), p. 548; article 4 (a) of the resolution on “ Le Caractère national d’une réclamation internationale présentée par un Etat en raison d’un dommage subi par un individu” adopted by the Institute of International Law at its 1965 Warsaw Session.

75See Alexander case (1898) 3 Moore, International Arbitrations, p. 2529 (United States-British Claims Commission); Oldenbourg case, Decisions and Opinions of Commissioners, 5 October 1929 to 15 February 1930, p. 97, Honey case, Further Decisions and Opinions of the Commissioners, subsequent to 15 February 1930, p. 13 (British-Mexican Claims Commission), cited in Z.R. Rode “Dual Nationals and the Doctrine of Dominant Nationality” AJIL, vol. 53 (1959), p. 139 at pp. 140-141; Adams and Blackmore case, decision No. 64

of 3 July 1931, UNRIAA vol. V, pp. 216-217 (British-Mexican Claims Commission).

76I.C.J. Reports 1949, p. 186.

77James Louis Drummond case 2 Knapp, P.C. Rep., p. 295, 12 Eng. Rep., p. 492; Brignone, Milani, Stevenson and Mathinson cases (British-Venezuelan Mixed Claim Commission) reported in Ralston, Venezuelan Arbitrations of 1903, pp. 710, 754-761, 438-455 and 429-438 respectively; Carnevaro case (Permanent Court of Arbitration, 1912) reported in Scott, The Hague Court Reports, vol. 1, at p. 284; Hein case of 26 April and 10 May 1922 (Anglo-German Mixed Arbitral Tribunal), Annual Digest of Public International Law cases, vol. 1, 1919-1922, case No. 148, p. 216; Blumenthal case (French-German Mixed Tribunal), Recueil des Décisions des Tribunaux Mixtes, vol. 3 (1924), p. 616; de Montfort case of 10 July 1926 (French-German Mixed Tribunal), Annual Digest of Public International Law Cases, vol. 3, 1925-1926, case No. 206, p. 279; Pinson case (French-Mexican Mixed

Claims Commission), Annual Digest of Public International Law Cases, vol. 4, 1927-1928, case Nos. 194 and 195 of 19 October 1928, pp. 297-301; Tellech case of 25 May 1928 (United States-Austria and Hungary Tripartite Claim Commission), 6 UNRIAA, vol. VI, p. 248.

44

International Court of Justice in another context in the Nottebohm case78 and was given explicit approval by Italian-United States Conciliation Commission in the Mergé claim in 1955. Here the Conciliation Commission stated that:

“The principle, based on the sovereign equa lity of States, which excludes diplomatic protection in the case of dual nationality, must yield before the principle of effective nationality whenever such nationality is that of the claiming State. But it must not yield when such predominance is not proved, because the first of these two principles is generally recognized and may constitute a criterion of practical application for the elimination of any possible uncertainty.” 79

In its opinion, the Conciliation Commission held that the principle of effective nationality and the concept of dominant nationality were simply two sides of the same coin. The rule thus adopted was applied by the Conciliation Commission in over 50 subsequent cases concerning dual nationals.80 Relying on these cases, the Iran-United States Claims Tribunal has applied the principle of dominant and effective nationality in a number of cases.81 Codification proposals have given approval to this approach. In his Third Report on State Responsibility to the Commission, Garcia Amador proposed that:

78I.C.J. Reports 1955, pp. 22-23. Nottebohm was not concerned with dual nationality but the Court found support for its finding that Nottebohm had no effective link with Liechtenstein in cases dealing with dual nationality. See also the judicial decisions referred to in footnote 65.

79ILR, vol. 22 (1955), p. 443 at p. 455 (para. V.5). See also de Leon case Nos. 218 and 227 of 15 May 1962

and 8 April 1963, UNRIAA, vol. XVI, p. 239 at p. 247.

80 See, for example, Spaulding claim, decision No. 149, ILR, vol. 24 (1957), p. 452; Zangrilli claim

of 21 December 1956, ILR, vol. 24 (1957), p. 454; Cestra claim, decision No. 165 of 28 February 1957, ILR,

vol. 24 (1956), p. 454; Puccini claim, decision No. 173 of 17 May 1957, ILR, vol. 24 (1957), p. 454; Salvoni Estate claim, decision No. 169 of 9 May 1957, ILR, vol. 24 (1957), p. 455; Ruspoli claim, decision No. 170 of

15 May 1957, ILR, vol. 24 (1957), p. 457; Ganapini claim, decision No. 196 of 30 April 1959, ILR, vol. 30 (1959), p. 366; Turri claim, decision No. 209 of 14 June 1960, ILR, vol. 30 (1960), p. 371; Graniero claim, decision

No. 186 of 20 January 1959, ILR, vol. 30 (1959), p. 451; Di Cicio claim, decision No. 226 of 9 November 1962, ILR, vol. 40 (1962), p. 148.

81 See, in particular, Esphahanian v. Bank Tejarat, Iran-U.S.C.T.R., vol. 2 (1983), p. 166; case No. A/18,

Iran-U.S.C.T.R, vol. 5 (1984), p. 251; Ataollah Golpira v. Government of the Islamic Republic of Iran, Iran-U.S.C.T.R, vol. 2 (1983), p. 174 and ILR, vol. 72, p. 493.

45

“In cases of dual or multiple nationality, the right to bring a claim shall be exercisable only by the State with which the alien has the stronger and more genuine legal or other ties.” 82

A similar view was advanced by Orrego Vicuña in his report to the International Law Association in 2000.83

(4)Even though the two concepts are different the authorities use the term “effective” or “dominant” without distinction to describe the required link between the claimant State and its national in situations in which one State of nationality brings a claim against another State of nationality. Draft article 7 does not use either of these words to describe the required link but instead uses the term “predominant” as it conveys the element of relativity and indicates that the individual has stronger ties with one State rather than another. A tribunal considering this question is required to balance the strengths of competing nationalities and the essence of this exercise is more accurately captured by the term “predominant” when applied to nationality than either “effective” or “dominant”. It is moreover the term used by the Italian-United States Conciliation Commission in the Mergé claim which may be seen as the starting point for the development of the present customary rule.84

(5)No attempt is made to describe the factors to be taken into account in deciding which nationality is predominant. The authorities indicate that such factors include habitual residence, the amount of time spent in each country of nationality, date of naturalization (i.e., the length of the period spent as a national of the protecting State before the claim arose); place, curricula and language of education; employment and financial interests; place of family life; family ties in each country; participation in social and public life; use of language; taxation, bank account, social security insurance; visits to the other State of nationality; possession and use of passport of the other State; and military service. None of these factors is decisive and the weight attributed to each factor will vary according to the circumstances of each case.

82 Document A/CN.4/111, in Yearbook … 1958, vol. II, p. 61, draft art. 21, para. 4.

83 “Interim Report on the ‘The Changing Law of Nationality of Claims’” in International Law Association (ILA) Report of the 69th Conference (2000), pp. 646 (para. 11); confirmed in the final report adopted at the 2006 ILA Conference in Toronto.

84 ILR, vol. 22 (1955), p. 455.

46

(6)Draft article 7 is framed in negative language: “A State of nationality may not exercise diplomatic protection … unless” its nationality is predominant. This is intended to show that the circumstances envisaged by draft article 7 are to be regarded as exceptional. This also makes it clear that the burden of proof is on the claimant State to prove that its nationality is predominant.

(7)The main objection to a claim brought by one State of nationality against another State of nationality is that this might permit a State, with which the individual has established a predominant nationality subsequent to an injury inflicted by the other State of nationality, to bring a claim against that State. This objection is overcome by the requirement that the nationality of the claimant State must be predominant both at the date of the injury and at

the date of the official presentation of the claim. Although this requirement echoes the principle affirmed in draft article 5, paragraph 1, on the subject of continuous nationality, it is not necessary in this case to prove continuity of predominant nationality between these two dates. The phrases “at the date of injury” and “at the date of the official presentation of the claim” are explained in the commentary on draft article 5. The exception to the continuous nationality rule contained in draft article 5, paragraph 2, is not applicable here as the injured

person contemplated in draft article 7 will not have lost his or her other nationality.

Article 8

Stateless persons and refugees

1.A State may exercise diplomatic protection in respect of a stateless person who, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.

2.A State may exercise diplomatic protection in respect of a person who is recognized as a refugee by that State, in accordance with internationally accepted standards, when that person, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.

3.Paragraph 2 does not apply in respect of an injury caused by an internationally wrongful act of the State of nationality of the refugee.

47

Commentary

(1) The general rule was that a State might exercise diplomatic protection on behalf of its nationals only. In 1931 the United States-Mexican Claims Commission in Dickson Car Wheel

Company v. United Mexican States held that a stateless person could not be the beneficiary of diplomatic protection when it stated:

“A State … does not commit an international delinquency in inflicting an injury upon an individual lacking nationality, and consequently, no State is empowered to intervene or complain on his behalf either before or after the injury.” 85

This dictum no longer reflects the accurate position of international law for both stateless persons and refugees. Contemporary international law reflects a concern for the status of both categories of persons. This is evidenced by such conventions as the Convention on the Reduction of Statelessness of 196186 and the Convention Relating to the Status of Refugees

of 1951.87

(2)Draft article 8, an exercise in progressive development of the law,88 departs from the traditional rule that only nationals may benefit from the exercise of diplomatic protection and allows a State to exercise diplomatic protection in respect of a non-national where that person is either a stateless person or a refugee. Although draft article 8 is to be seen within the framework of the rules governing statelessness and refugees, it has made no attempt to pronounce on the status of such persons. It is concerned only with the issue of the exercise of the diplomatic protection of such persons.

(3)Paragraph 1 deals with the diplomatic protection of stateless persons. It gives no definition of stateless persons. Such a definition is, however, to be found in the Convention Relating to the Status of Stateless Persons of 195489 which defines a stateless person “as a person

85UNRIAA, vol. IV, p. 669 at p. 678.

86United Nations, Treaty Series, vol. 989, p. 175.

87Ibid., vol. 189, p. 150.

88In Al Rawi & Others, R (on the Application of) v. Secretary of State for Foreign Affairs and Another [2006] EWHC (Admin) an English court held that draft article 8 was to be considered lex ferenda and “not yet part of international law” (para. 63).

89United Nations, Treaty Series, vol. 360, p. 117.

48

who is not considered as a national by any State under the operation of its law”. 90 This definition can no doubt be considered as having acquired a customary nature. A State may exercise diplomatic protection in respect of such a person, regardless of how he or she became stateless, provided that he or she was lawfully and habitually resident in that State both at the time of injury and at the date of the official presentation of the claim. Habitual residence in this context is intended to convey continuous residence.

(4)The requirement of both lawful residence and habitual residence sets a high threshold.91

Although this threshold is high and leads to a lack of effective protection for some individuals, the combination of lawful residence and habitual residence is justified in the case of an exceptional measure introduced de lege ferenda.

(5)The temporal requirements for the bringing of a claim are contained in paragraph 1. The stateless person must be a lawful and habitual resident of the claimant State both at the time of the injury and at the date of the official presentation of the claim.

(6)Paragraph 2 deals with the diplomatic protection of refugees by their State of residence. Diplomatic protection by the State of residence is particularly important in the case of refugees as they are “unable or unwilling to avail [the mselves] of the protection of [the State of Nationality]” 92 and, if they do so, run the risk of losing refugee status in the State of residence. Paragraph 2 mirrors the language of paragraph 1. Important differences between stateless persons and refugees, as evidenced by paragraph 3, explain why a separate paragraph has been allocated to each category.

(7)Lawful residence and habitual residence are required as preconditions for the exercise of diplomatic protection of refugees, as with stateless persons,93 despite the fact that article 28 of the Convention Relating to the Status of Refugees sets the lower threshold of “lawfully

90Article 1.

91The terms “lawful and habitual” residence are based on the 1997 European Convention on Nationality,

article 6 (4) (g), where they are used in connection with the acquisition of nationality. See, too, the 1960 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens, which includes for the purpose of protection under this Convention a “stateless person having his habitual residence in that State”, article 21 (3) (c).

92Article 1 (A) (2) of the Convention Relating to the Status of Refugees.

93Habitual residence in this context connotes continuous residence.

49

staying” 94 for Contracting States in the issuing of travel documents to refugees. Two factors justify this position. First, the fact that the issue of travel documents, in terms of the Convention, does not in any way entitle the holder to diplomatic protection.95 Secondly, the necessity to set a high threshold when introducing an exception to a traditional rule, de lege ferenda.96

(8)The term “refugee” in paragraph 2 is not limited to refugees as defined in

the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol but is intended to cover, in addition, persons who do not strictly conform to this definition. The Commission considered using the term “recognized refugees”, which appears in the 1997 European Convention on Nationality,97 which would have extended the concept to include refugees recognized by regional instruments, such as the 1969 O.A.U. Convention Governing the Specific Aspects of Refugee Problems in Africa,98 widely seen as the model for the international protection of refugees,99 and the 1984 Cartagena Declaration on the International Protection of Refugees in Central America, approved by the General Assembly of the O.A.S. in 1985.100

However, the Commission preferred to set no limit to the term in order to allow a State to extend diplomatic protection to any person that it recognized and treated as a refugee.101 Such recognition must, however, be based on “internati onally accepted standards” relating to the recognition of refugees. This term emphasizes that the standards expounded in different conventions and other international instruments are to apply as well as the legal rules contained in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

94The travaux préparatoires of the Convention make it clear that “stay” means less than habitual residence.

95See para. 16 of the Schedule to the Convention.

96See para. (4) of the commentary to this draft article.

97Article 6 (4) (g).

98United Nations, Treaty Series, vol. 1001, p. 45. This Convention extends the definition of refugee to include “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality”.

99Note on International Protection submitted by the United Nations High Commissioner for Refugees,

document A/AC.96/830, p. 17, para. 35.

100O.A.S. General Assembly, XV Regular Session (1985).

101For instance, it may be possible for a State to exercise diplomatic protection on behalf of a person granted political asylum in terms of the 1954 Caracas Convention on Territorial Asylum, United Nations, Treaty Series, vol. 1438, p. 129.

50